The
question of whether trial court lacked subject matter jurisdiction over
casino patron's negligence claim against Indian tribe, for injuries patron
sustained in tribe's casino, because that claim was barred by tribal sovereign
immunity was a threshold question that was properly presented by way of
a motion to dismiss, rather than by a motion for summary judgment, and
therefore, it was proper for the trial court to consider the tribe's motion
to dismiss with the accompanying affidavits and not appropriate to consider
the tribe's motion for summary judgment.

A
motion to dismiss for lack of subject matter jurisdiction is analogous
to a motion to dismiss for lack of personal jurisdiction.

In
considering a motion to dismiss challenging subject matter jurisdiction,
a trial court may properly go beyond the four corners of the complaint
and consider affidavits.

Certiorari
jurisdiction existed over Indian tribe's appeal from trial court's decision
denying tribe's motion to dismiss negligence claim brought by casino patron,
who alleged that she was injured in tribe's casino, because the inappropriate
exercise of jurisdiction by a trial court over a sovereignly-immune tribe
was an injury for which there was no adequate remedy on appeal.

?Tribal
sovereign immunity,? like the qualified immunity enjoyed in civil rights
cases by public officials, involves immunity from suit,
rather than a mere defense to liability, which is an entitlement that
is effectively lost if a case is erroneously permitted to go to trial.

As
a matter of federal law, an Indian tribe is subject
to suit only where Congress has authorized the suit or
the tribe has waived its immunity, and congressional waiver or
abrogation of tribal sovereign immunity must be unequivocal and does
not arise by implication; likewise, a waiver of tribal immunity
by a tribe must be clear.

Absent
an effective waiver of sovereign immunity, or consent, a state
court may not exercise jurisdiction over a recognized Indian tribe.

Unless
expressly waiving soveriegn immunity in its charter, Indian tribal government
enjoys full immunity from suit to the extent not abrogated
by Congress.

The
purchase of insurance by an Indian tribe is not sufficient
to demonstrate a clear waiver by the tribe of its
sovereign immunity; although it may be a plausible inference that
the purchase of insurance indicates an intention to assume liability
and waive tribal immunity, such an inference is not a
proper basis for concluding that there was a clear waiver
by the tribe, and rather than indicating an intention to
waive immunity, the purchase of insurance may simply be a
measure to provide protection for the tribe's assets against the
possibility that the tribe's immunity will be abrogated or ignored.

Pursuant
to Indian tribe's constitution, a specific procedure had to be
followed to accomplish a waiver of the tribe's sovereign immunity,
and under that procedure, the purchase of liability insurance by
tribe would result in a waiver of tribe's immunity only
if the tribal council adopted a resolution specifically acknowledging the
waiver in conjunction with purchase of liability insurance, and since
record showed that no such resolution had been adopted, purchase
of liability insurance by tribe did not result in waiver
of tribe's immunity in connection with negligence suit brought by
casino patron, who alleged that she was injured in Indian
casino.

Once
Indian tribe submitted affidavits showing that it was a sovereignly-immune
entity and had not waived its immunity, the burden was
on casino patron to rebut the tribe's affidavits in negligence
action brought by patron, who alleged that she was injured
in tribe's casino.

Casino
patron, who alleged that she was injured in Indian tribe's
casino, had sufficient opportunity to obtain available evidence to rebut
the evidence presented by tribe showing that it was a
sovereignly-immune entity and had not waived its immunity; more than
a year and a half passed between the tribe's filing
of its affidavits and the trial court's consideration of tribe's
motion to dismiss, and tribe's motion itself was pending for
nearly three months before it was heard by trial court,
and accordingly, any inadequacy of evidentiary development on waiver issue
had to be attributed to patron, not to tribe.

Petition
for Writ of Certiorari to the Circuit Court for Hillsborough
County; William P. Levens, Judge.

*1
The Seminole Tribe of Florida seeks certiorari review of the
trial court's order denying the Tribe's motion to dismiss or
for summary judgment. The Tribe's motion was based on the
assertion that the Tribe was, by virtue of its status
as a federally recognized Indian tribe, immune from the suit
for negligence brought by Angela McCor for injuries she allegedly
suffered at the gaming facility located on the Tribe's Tampa
reservation. Because the trial court's denial of the Tribe's motion
was a clear departure from the essential requirements of law
resulting in injury to the Tribe which cannot be remedied
on appeal, we grant the Tribe's petition.

I.
Background

McCor's
action against the Tribe-which was initiated in August 2002-seeks damages
for injuries she allegedly sustained from being struck by a
chair while she was at the Tribe's gaming facility in
Tampa. In November 2002, the Tribe filed a motion to
dismiss for lack of subject matter jurisdiction-based on tribal sovereign
immunity-along with supporting affidavits.

In
December 2003, McCor filed an amended complaint. The amended complaint-like
the initial complaint-alleged that at the time of the incident
at issue the Tribe was insured by St. Paul Fire
and Marine Insurance Company for $1,000,000 in liability coverage. The
complaint further alleged that by possessing the insurance coverage the
Tribe had waived its sovereign immunity to the extent of
the policy coverage. After answering the amended complaint and further
asserting its tribal sovereign immunity by way of an affirmative
defense, the Tribe, in May 2004, filed its motion to
dismiss or, in the alternative, for summary judgment. In its
motion, the Tribe asserted that it ?is
entitled to immunity from suit in all state and federal
courts under the doctrine of tribal sovereign immunity,?
that the Tribe ?has
not waived sovereign immunity for any of McCor's claims in
this litigation,?
and that the circuit court therefore ?lacks
subject matter jurisdiction over this suit.?

In
support of this motion, the Tribe relied on the same
affidavits that had been filed in November 2002. These affidavits
were executed by Max B. Osceola, Jr., a member of
the Tribal Council, and by Mary Jane Willie, the ?Official
Tribal Clerk.?
The Osceola affidavit states that the Tribe ?was
formally organized for the common welfare of its tribal members
in accordance with the provisions of section 16 of the
Indian
Reorganization Act of 1934
and has since been federally recognized and designated as an
organized Indian tribe.?
FN1
The affidavit also recites: ?At
no time, and under no circumstances, have any claims or
a waiver of tribal sovereign immunity respecting [a claim such
as McCor's] been approved by the Tribal Council.?
Attached to the Osceola affidavit are copies of the amended
constitution and bylaws of the Tribe and of Tribal Ordinance
C-01-95. As the affidavit states, the constitution-the Tribe's charter-?describes
the rights of the [Tribe] as a body politic to
determine its destiny through self-government?
and provides that the ?Tribe
conducts its governmental business through an elected governing council-The Tribal
Council of the Seminole Tribe of Florida.?
The Tribal Ordinance, which was adopted March 16, 1995, by
the Tribal Council, recites that the Tribe was ?formally
organized ...
in accordance with the provisions of Section 16 of the
Indian
Reorganization Act of 1934.?
The ordinance states ?that
the Seminole Tribe of Florida ...
[is] immune from suit brought by any third-party in any
state or federal court without the clear and unequivocal consent
of the Seminole Tribe of Florida or the clear, express
and unequivocal consent of the United States Congress. This immunity
shall apply whether the Tribe ...
is engaged in a private enterprise or governmental function.?
The ordinance further provides

*2
that the consent of the Seminole Tribe of Florida to
waive its immunity from suit in any state or federal
court may only be accomplished through the clear, express and
unequivocal consent of the Seminole Tribe of Florida pursuant to
a resolution duly enacted by the Tribal Council of the
Seminole Tribe of Florida sitting in legal session. Any such
resolution purporting to waive sovereign immunity as to the Seminole
Tribe of Florida ...
shall specifically acknowledge that the Seminole Tribe of Florida is
waiving its sovereign immunity [on] a limited basis and describe
the purpose and extent to which such waiver applies. The
failure of the Tribal Council resolution to contain such language
shall render it ineffective to constitute a waiver of tribal
sovereign immunity.

The
Willie affidavit states that Willie is ?the
tribal official who has been appointed ...
to retain all resolutions and ordinances duly enacted by the
Tribal Council.?
The Willie affidavit further recites that a search of the
Tribe's records revealed ?that
at no time and under no circumstances has the Tribal
Council enacted any resolution [or] ordinance or taken any other
governmental action to waive tribal sovereign immunity in connection with
any claim of any individual for personal injuries against the?
Tribe. The affidavit also states specifically that the Tribe has
never ?agreed
to be bound or governed by any state or federal
law regarding any claim raised by Angela McCor.?
Attached to the Willie affidavit are copies of the amended
constitution and bylaws and of the Tribal Ordinance, which the
affidavit states are ?genuine?
copies.

After
a hearing on August 2, 2004, the trial court entered
an order denying the Tribe's motion. In its order, the
trial court stated: ?[I]t
is clear that the record before me lacks sufficient evidentiary
development to determine whether or not the tribal charter contains
an explicit and unequivocal waiver of its immunity, and whether
the tribe intended to waive its immunity through the purchase
of liability insurance.?
The trial court denied the Tribe's motion without prejudice, ?to
allow the plaintiff to develop these issues through additional discovery.?

II.
Argument
on Appeal

The
Tribe argues that the record before the trial court established
that the Tribe was entitled to sovereign immunity and that
the trial court therefore did not have subject matter jurisdiction
over McCor's claim. Certiorari relief is appropriate, according to the
Tribe, because it is a clear departure from the essential
requirements of law for a trial court to compel the
Tribe to defend a lawsuit over which the trial court
has no subject matter jurisdiction. McCor contends that the Tribe
?expressly
waived sovereign immunity by purchasing an insurance policy that provided
coverage for negligent acts.?
McCor further argues that ?several
questions still exist as to the facts surrounding the [T]ribe's
purchase of liability coverage,?
and that ?[i]t
is still unclear at this time when, how and most
importantly, why such coverage was purchased by the [Tribe].?
The Tribe replies that the purchase of liability insurance by
the Tribe as a matter of law does not constitute
a waiver of the Tribe's sovereign immunity.

III.
Analysis

A.
Procedural
Matters

*3
At the outset, we address two procedural questions: (1) whether
the Tribe's claim that the trial court lacked subject matter
jurisdiction should have been raised by way of a motion
for summary judgment or by way of a motion to
dismiss; and (2) whether there is a basis for this
court to exercise its common law certiorari jurisdiction in the
circumstances present here.

1.
Challenging
Subject Matter Jurisdiction

The question of whether
a court lacks subject matter jurisdiction over a claim because that claim
is barred by tribal sovereign immunity is a threshold question that is
properly presented by way of a motion to dismiss, rather than by a motion
for summary judgment. A motion to dismiss for lack of subject matter jurisdiction
is analogous to a motion to dismiss for lack of personal jurisdiction.
See Venetian
Salami Co. v. Parthenais,
554 So.2d 499, 502 (Fla.1989) (setting forth process for determining factual
issues raised by motion to dismiss for lack of personal jurisdiction).
In considering a motion to dismiss challenging subject matter jurisdiction,
a trial court may properly go beyond the four corners of the complaint
and consider affidavits. See
Barnes v. Ostrander,
450 So.2d 1253, 1254 (Fla. 2d DCA 1984) (?Speaking motions with supporting
affidavits may be filed in order to attack jurisdiction over the subject
matter?); see also Holland
v. Anheuser Busch, Inc.,
643 So.2d 621, 623 n. 2 (Fla. 2d DCA 1994) (citing Barnes
and recognizing that ?under certain circumstances a trial court, on a
motion to dismiss supported by affidavit, has the authority
to decide ultimate issues of fact relating to ... jurisdiction over the
subject matter?). Challenges to subject matter jurisdiction raised by
Indian tribes asserting tribal immunity have regularly been made by way
of motions to dismiss. See
Seminole Tribe v.
Houghtaling, 589 So.2d
1030, 1031 (Fla. 2d DCA 1991) ; Seminole
Police Dep't v. Casadella,
478 So.2d 470, 471 (Fla. 4th DCA 1985). We therefore conclude that it
was proper for the trial court to consider the Tribe's motion to dismiss
with the accompanying affidavits and not appropriate to consider the motion
for summary judgment. But
see Mancher v. Seminole
Tribe, 708 So.2d 327,
328-29 (Fla. 4th DCA 1998) (holding that challenge to jurisdiction based
on tribal sovereign immunity was ?not amenable to resolution by motion
to dismiss because there are disputed factual questions?).

2.
Certiorari
Jurisdiction

We have previously exercised
our common law certiorari jurisdiction to review a trial court order denying
a motion to dismiss where the motion was based on the assertion that the
trial court lacked subject matter jurisdiction because the suit was barred
by tribal sovereign immunity. See
Houghtaling,
589 So.2d at 1031; see
also Casadella,
478 So.2d at 471 (granting common law writ of certiorari and quashing
trial court order that denied motion to dismiss where defendants were
?a derivative economic organization and agent of the Seminole Tribe of
Florida? which ?were immune from suit under the doctrine of sovereign
immunity?); cf. Miccosukee
Tribe of Indians v. Napoleoni,
890 So.2d 1152, 1153-54 (Fla. 1st DCA 2004) (granting ?writ of prohibition,
barring further proceedings,? where workers' compensation claim was brought
against Indian tribe that enjoyed sovereign immunity). Certiorari jurisdiction
exists in this context because the inappropriate exercise of jurisdiction
by a trial court over a sovereignly-immune tribe is an injury for which
there is no adequate remedy on appeal. Tribal sovereign immunity, like
the qualified immunity enjoyed in civil rights cases by public officials,
?involves ?immunity
from suit rather than
a mere defense to liability,? ? which is an ?entitlement? that ? ?is effectively
lost if a case is erroneously permitted to go to trial.? ? Tucker
v. Resha, 648 So.2d
1187, 1189 (Fla.1994) (quoting Mitchell
v. Forsyth, 472 U.S.
511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)).

B.
Tribal
Sovereign Immunity

*4 ?As
a matter of federal law, an Indian tribe is subject to suit only where
Congress has authorized the suit or the tribe has waived its immunity.?
Kiowa Tribe v. Mfg.
Techs., Inc., 523 U.S.
751, 754, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998). Congressional waiver
or abrogation of tribal sovereign immunity must be unequivocal and does
not arise by implication. Santa
Clara Pueblo v. Martinez,
436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). Likewise, a waiver
of tribal immunity by a tribe must be clear. Okla.
Tax Comm'n v. Citizen Band Potawatomi Indian Tribe,
498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991).

?Absent an effective waiver
or consent, it is settled that a state court may not exercise jurisdiction
over a recognized Indian tribe.? Puyallup
Tribe, Inc. v. Dep't of Game,
433 U.S. 165, 172, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977); see
also Gallegos v.
Pueblo of Tesuque,
132 N.M. 207, 46 P.3d 668, 673 (N.M.2002) (?Without an unequivocal and
express waiver of sovereign immunity or congressional authorization, state
courts lack the power to entertain lawsuits against tribal entities.?);
Cupo v. Seminole Tribe,
860 So.2d 1078, 1079 (Fla. 1st DCA 2003) (affirming dismissal of workers'
compensation claim based on lack of subject matter jurisdiction over tribe
where claimant ?failed to show a clear, express and unmistakable waiver
of sovereign immunity by the Tribe, or any Act of Congress abrogating
the Tribe's sovereign immunity?).

Here, the record demonstrates,
without dispute, that the Tribe is an Indian tribe organized pursuant
to section 16 of the Indian Reorganization Act of 1934. ?Unless expressly
waiving immunity in its charter, the section 16 tribal government enjoys
full immunity from suit to the extent not abrogated by Congress.? Houghtaling,
589 So.2d at 1031-32 (footnote omitted). FN2
The Tribe's constitution-its charter-contains no provision waiving the
Tribe's sovereign immunity. McCor does not claim that Congress has abrogated
the sovereign immunity of the Tribe or that the Tribe's charter contains
a waiver provision. Instead, McCor contends that the Tribe has waived
its immunity by purchasing liability insurance. The Tribe does not assert
that a waiver of immunity must be set forth in the text of the Tribe's
constitution. The Tribe argues instead that Tribal Ordinance C-01-95-which
was adopted under the governing structure established by the constitution-sets
forth the exclusive means of accomplishing a waiver of the Tribe's immunity:
a resolution of the Tribal Council ?specifically acknowledg[ing] that
the [Tribe] is waiving its sovereign immunity on a limited basis and describ[ing]
the purpose and extent to which such waiver applies.? The Tribe relies
on the absence of any such resolution in order to establish that the Tribe
has not waived its immunity.

C.
The
Waiver-by-Insurance Issue

In
Atkinson
v. Haldane,
569 P.2d 151, 167-170 (Alaska 1977), the Alaska Supreme Court
rejected a claim that a tribe's purchase of liability insurance
constituted a waiver of the tribe's immunity. The court held
that ?a
waiver of sovereign immunity should [not] be implied from an
act which was intended to protect the tribal resources,?
id.
at 169, concluding that an implication that a tribe's ?sovereign
immunity was waived to the extent of its insurance coverage
would operate to defeat the purpose of the immunity,?
id.
at 170.

*5
The First District reached a similar conclusion in Napoleoni,
890 So.2d at 1153, rejecting an argument that a tribe's
purchase of workers' compensation insurance ?is
an explicit waiver of tribal immunity.?
In reaching this conclusion, the court observed that the tribe
had ?explicitly
rejected waiver?
of its tribal immunity by its adoption of a ?resolution
establishing its own tribal workers' benefit system.?
Id.
at 1153-54.

We agree with the holdings
of Atkinson
and Napoleoni.
The purchase of insurance by an Indian tribe is not sufficient to demonstrate
a clear waiver by the tribe of its sovereign immunity. Although it may
be a plausible inference that the purchase of insurance indicates an intention
to assume liability and waive tribal immunity, such an inference is not
a proper basis for concluding that there was a clear waiver by the Tribe.
Rather than indicating an intention to waive immunity, the purchase of
insurance may simply be a measure to provide protection for the Tribe's
assets against the possibility that the Tribe's immunity will be abrogated
or ignored. We therefore conclude that the purchase of insurance by a
tribe does not manifest a clear intention of the tribe to forgo the benefits
of its status under federal law as a sovereignly-immune entity. To hold
otherwise would risk penalizing a tribe for taking action to protect its
resources against the potential that the tribe's sovereign immunity will
be ignored or abrogated.

In this case, the record shows
that the Tribe has established, pursuant to its constitution, a specific
procedure which must be followed to accomplish a waiver of the Tribe's
sovereign immunity. Under that procedure, the purchase of liability insurance
by the Tribe would result in a waiver of the Tribe's immunity only if
the Tribal Council adopted a resolution specifically acknowledging the
waiver in conjunction with the purchase of the liability insurance. The
record before us shows that no such resolution has been adopted.

D.
The
Insufficient-Evidentiary-Development Issue

We
reject the trial court's conclusion that the record ?lacks
sufficient evidentiary development to determine whether or not the tribal
charter contains an explicit and unequivocal waiver of its immunity.?
The unchallenged affidavits and the accompanying tribal documents speak for
themselves. They make clear beyond any doubt that the Tribe
has not taken action pursuant to its tribal charter to
waive its sovereign immunity. Similarly, we reject the trial court's
conclusion that the record is insufficient to determine ?whether
the [T]ribe intended to waive its immunity through the purchase
of liability insurance.?
McCor points to no potential evidence that would be relevant
to that issue. And the affidavits and tribal documents submitted
by the Tribe negate any suggestion that the Tribe's purchase
of liability insurance was intended to act as a waiver.

In
the instant case, the basis for granting the Tribe's motion
to dismiss was established. The circumstances here are entirely different
from those present in Houghtaling,
where the case was remanded for further proceedings because the
record lacked ?adequate
evidentiary development.?
589 So.2d at 1032. In Houghtaling,
there is no indication that the record before the trial
court contained any affidavits establishing the facts concerning whether there
had been a waiver of tribal sovereign immunity. Here, the
record before the court contains unrebutted evidence establishing that the
Tribe has not waived its immunity.

*6
Once the Tribe submitted
affidavits showing that it was a sovereignly-immune entity and had not
waived its immunity, the burden was on McCor to rebut the Tribe's affidavits.
See Venetian
Salami Co., 554 So.2d
at 502 (stating that once a defendant contesting personal jurisdiction
?file[s] affidavits in support of his position,? the plaintiff then has
the burden ?to prove by affidavit the basis upon which jurisdiction may
be obtained?). McCor failed to meet this burden.

There is no ground for the argument
that McCor did not have a sufficient opportunity to obtain available evidence
to rebut the evidence presented by the Tribe. More than a year and a half
passed between the Tribe's filing of its affidavits and the trial court's
consideration of the Tribe's motion. And the Tribe's motion itself was
pending for nearly three months before it was heard by the trial court.
Accordingly, any inadequacy of the ?evidentiary development? on the waiver
issue must be attributed to McCor, not to the Tribe.

IV.
Conclusion

The
Tribe demonstrated that it was entitled to tribal sovereign immunity
and that the trial court was without subject matter jurisdiction
over the claim brought by McCor. In failing to grant
the Tribe's motion to dismiss, the trial court violated a
clearly established principle of law, resulting in injury to the
Tribe that cannot be remedied on appeal. We therefore grant
the Tribe's petition, quash the trial court's order denying the
motion to dismiss, and direct that the trial court dismiss
McCor's complaint.

Petition
granted; order quashed.

NORTHCUTT
, J., Concurs.

ALTENBERND,
C.J., Concurs with opinion.

ALTENBERND,
Chief Judge, Concurring.

I
have previously reached the same conclusion that we reach today.
See
Seminole
Tribe of Fla. v. Houghtaling,
589 So.2d 1030 (Fla. 2d DCA 1991) (Altenbernd, J., concurring).
The Seminole Tribe has every right to raise the defense
of sovereign immunity concerning the claim of a person who
is injured while visiting a traditional reservation to observe and
learn about the culture of native Americans. In this case,
however, the Seminole Tribe has created a large tourist attraction
along Interstate 4 known as the Seminole ?Hard
Rock?
Casino. It is adjacent to the State Fairgrounds and advertises
itself as a hotel and casino on Orient Road in
Tampa, Florida. But this casino is not legally in Florida.
FN3

The
average tourist has no idea that her Florida constitutional rights
to access to the courts and to trial by jury
do not apply to any claims that may arise while
she visits the hotel and casino. The Tribe itself does
not post warnings that its tourist attraction is exempt from
these basic Florida constitutional protections. In this case, the Seminole
Tribe and, indirectly its commercial insurance company, are raising the
jurisdictional bar to prevent judicial resolution of a relatively minor
and defensible personal injury claim. However, they could raise the
same bar for a serious wrongful death action.

*7
Although the insurance policy is not in our record, many
general liability policies issued to governmental bodies contain an agreement
that the insurance company will not itself rely upon the
government's sovereign immunity, but these clauses do not prevent the
governmental entity from raising its sovereign immunity. The rule of
law requires this court to reach this outcome, but hopefully
the Seminole Tribe of Florida will eventually conclude that this
litigation tactic is not the best policy to promote a
profitable business.

FN1.
The current version of section 16 is found at 25
U.S.C.A. § 476
(2004).

[W]e
hold that the Seminole Tribe is immune from suit and
that Florida courts lack subject matter jurisdiction unless: (1) the
Seminole Tribe has consented to suit in its section 16
charter, or (2) the organization owning the Bingo Hall is
a section 17 corporate entity whose corporate charter allows it
to be sued.

Id.
In the instant case, there is no suggestion that the
McCor suit is against ?a
section 17 corporate entity.?

FN3.
History records that the Seminole Tribe purchased this land about
twenty years ago to use as a burial ground and
museum for Seminole bones and artifacts that were unearthed during
the construction of the Fort Brooke Parking Garage in downtown
Tampa. James W. Covington, The
Seminoles of Florida
255 (University Press of Fla.1993).